Health and Safety Dismissal and Detriment

Herve v Goldstein [2024] was heard on 27 February 2024, and revolved around an individual (the Claimant) who worked as a personal assistant from an office at their employer’s (the Respondent) family home. In the first national lockdown, as the Claimant’s partner was vulnerable, she worked from home until it lifted, when she began to attend the office one day every two weeks.

When the second lockdown started in November 2020, the Claimant said she would work from home full-time, as she was concerned about the health and safety risks both from commuting to and from work at that time and in being physically present in the workplace. The Respondent objected to this proposal and said that the hybrid arrangement should continue in addition to sending her a message accusing her of unprofessional conduct and malingering. This behaviour resulted in the Claimant resigning.

When the judgement was handed down on 14 March 2024, the tribunal held that the Claimant had been automatically unfairly dismissed and subjected to detriment on health and safety grounds. The EAT agreed with the tribunal and held that:

• The Claimant had raised circumstances connected with her work (which could include travel to and from work) which she reasonably believed were harmful or potentially harmful to health and safety. She had been subjected to detriment as a result (including criticism of her work and failure to pay notice pay and holiday pay).
• The Claimant had refused to return to the workplace at the start of the second lockdown in circumstances of danger which she reasonably believed were serious and imminent.
• The Respondent breached trust by objecting to her refusal and pressing the Claimant to attend. The Claimant resigned in response to this. She had been constructively dismissed. This dismissal was automatically unfair on health and safety grounds.
• More generally, the EAT also found that the ET had been entitled to find that the respondent’s actions breached the implied term of trust and confidence and gave rise to an automatically unfair dismissal.

If you feel you have been unfairly dismissed and need legal advice, please get in touch on 020 8290 0440 and ask to speak to a member of our Employment Team.